Metzger & Dimov (No 4)
[2025] FedCFamC2F 262
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Metzger & Dimov (No 4) [2025] FedCFamC2F 262
File number(s): BRC 7395 of 2022 Judgment of: JUDGE BERTONE Date of judgment: 21 February 2025 Catchwords: FAMILY LAW- Property – Application to consolidate proceedings - where Wife seeks consolidation of the Family Law Act proceeding with Fair Work Act proceedings – where Husband commenced Family Law Act proceedings for property settlement first – where Wife claims similarity of factual dispute and increased legal costs of two actions requires the proceedings to be consolidated – where there is no power to consolidate the two proceedings – Application to consolidate dismissed – Husband’s costs reserved to trial Legislation: Family Law Act 1975 (Cth), s79, s102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss112, 135
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r.1.06
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Whisprun Pty Ltd & Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 28 Date of last submission/s: 21 February 2025 Date of hearing: 21 February 2025 Place: Brisbane Counsel for the Applicant: Mr Tesoriero Solicitor for the Applicant: Destra Law Respondent: Appeared on his own behalf ORDERS
BRC 7395 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DIMOV
Applicant
AND: MR METZGER
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS:
1.Pursuant to section 102NA(1)(c)(ii) of the Family Law Act 1975:
(a)The Wife is not permitted to personally cross-examine the Husband; and
(b)The Husband is not permitted to personally cross-examine the Wife.
2.The Wife’s Application in a Proceeding to consolidate Proceeding No. … and Proceeding No. BRC7395/2022 is dismissed.
3.The Trial Compliance Hearing set down for 11 March 2025 at 9:30am is vacated.
4.The current trial dates set down for 25 and 26 March 2025 are vacated.
5.The matter is adjourned for final hearing of no more than two (2) days commencing at 10:00am on 15 and 16 May 2025.
6.The Respondent Husband’s costs of the Application in a Proceeding are reserved to the trial.
NOTATION:
A.Trial Directions will be re-issued from the Chambers of Judge Bertone in due course.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BERTONE
These are the settled reasons of a judgment I delivered ex tempore. Corrections have been made, where appropriate, to correct grammatical errors, to add citations and legislation provisions for ease of comprehension. The substance is unchanged.
Before me is an Application in a Proceeding filed by the Wife on 23 January 2025 but which was amended on 19 February 2025. The application seeks to consolidate proceedings under the Family Law Act 1979 (Cth) with proceedings under the Fair Work Act2009 (Cth). [1]
[1] The Husband appeared before me self-represented and opposed the application to consolidate the proceedings.
The Wife relies on:
(a)her Case Outline;
(b)an Affidavit in support prepared by one of her Solicitors, Mr Saponja, filed 23 January 2025;
(c)an Affidavit by another of her Solicitors, Ms Tacey, filed 3 February 2025; and
(d)a further Affidavit by Mr Saponja filed 20 February 2025 that I have given leave to the Wife to rely upon in this proceeding.[2]
[2] I am not required to mention every fact or argument put forward by a party, and I do not propose to address every submission made per Whisprun Pty Ltd & Dixon [2003] HCA 48; Baghti & Baghti and Ors [2015] FamCAFC 71.
The application was ill-conceived because it did not point to relevant sections of the Federal Circuit and Family Court of Australia Act 2021, which would be the appropriate place to start when one makes an application to consolidate proceedings.
The application instead was founded in rule 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules, which merely speaks to the Court's general powers of case management.
It is not the section or rule that gives me the jurisdiction to deal with an application to consolidate proceedings.
Section 135 of the Federal Circuit and Family Court of Australia Act specifies the two divisions of the Federal Circuit and Family Court of Australia (Division 2) are a General Division and a Fair Work Division.
The Fair Work Division, as the name implies, deals with matters brought under the Fair Work Act. The General Division deals with matters, amongst other things, that include proceedings brought under the Family Law Act.
The proceedings which are currently before me [3] are proceedings under the Family Law Act for property adjustment under section 79 of the Act which were commenced by the Husband on 21 June 2022.
[3] Federal Circuit and Family Court of Australia Act 2021 s112
What is startling to me is that not only was the application made on 21 June 2022, but it relates to a marriage between these two parties that occurred in 2019, after one month's cohabitation, and final separation occurred on 25 July 2021, three and a half years ago.
Despite the fact that the Wife was the Respondent in the Family Law Act proceedings, and noting that the Wife was successful in obtaining a periodic spousal maintenance order in the sum of $400 per week on 21 December 2022, she also was successful in obtaining a litigation funding order at that time in the sum of $35,000.
Despite that, the Wife then commenced proceedings under the Fair Work Act in July 2023. I do not have any of the documents in relation to the Fair Work proceedings, but I am told that the Fair Work proceedings relate to the question of whether the Wife was in fact an employee of the Husband in the Husband's companies.
The basis for the application for consolidation was to try to reduce costs and to preserve the duplication of processes, because there are said to be some common facts arising in both the Fair Work action and the Family Law Act action.
Whilst there might be some similarity in the factual dispute about whether or not the Wife worked in the company, or whether or not she was an employee in the sense used in the Fair Work Act, is not a reason to consolidate a proceeding that the Wife herself commenced one year after she knew she was a Respondent in Family Law Act proceedings in this Court.
That means the Wife is the author of her own misfortune. The Wife has chosen to embark on a process that has incurred two different court actions, and the associated increased legal costs have been of her own creation.
I am not satisfied that I have the power under the Federal Circuit and Family Court of Australia Act to consolidate two different proceedings where one is a proceeding under the General Division of the Federal Circuit and Family Court (Division 2) and the other one is in the Fair Work Division.
This is clearly contemplated by section 135 of the Federal Circuit and Family Court of Australia Act 2021.
This means that there are two actions that remain on foot. The Fair Work action is due to be heard by his Honour, Judge Egan in March 2025. I am told that those proceedings are ready to go and be heard on that date. Those proceedings will continue on their path in front of Judge Egan.
With respect to the Family Law Act proceedings, they were due to be heard on a final basis by me on 25 and 26 March 2025.
I accept the evidence and submissions by Counsel for the Wife that as to the Single Expert report – whilst it might be available to the parties in early March 2025 - there will not be sufficient time for the parties to consider the contents of that Single Expert report and to ask questions of the Single Expert, as is their right under Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules.
Therefore, I am satisfied that it is appropriate to adjourn the Family Law Act proceedings before me to 15 and 16 May 2025, at which time I will hear the matter on a final basis. I have told the parties – in this case, the Wife is legally represented before me today, but the Husband has represented himself today – that these proceedings before me will be heard on 15 and 16 May 2025.
I will not adjourn those dates, and those dates could only be vacated if the parties themselves come to a final agreement that disposes of the matter entirely.
I am satisfied that section 102NA of the Family Law Act applies in this matter and that I ought to make a banning order.
This is because there is a final protection order as between the Husband and the Wife which remains in force until early 2027. There are allegations of family violence that are made one party against the other, and it is therefore appropriate for a section 102NA order to be made.
I have made it clear to the Husband, however, that if at the trial he is not legally represented, I will proceed to hear the matter, but he will be banned from personally cross-examining the Wife. He can of course proceed to cross-examine the Single Expert.
I will reserve the Husband’s costs of today’s Application as he has, it seems, gone to some effort to get legal advice for the preparation of his documents in response to this Application in a Proceeding. But that is a matter that I will deal with at the trial, and I expect there to be appropriate evidence to support any cost order that he wants me to make on that day.
I will issue trial directions to the parties for the new trial dates, after I have vacated the current trial dates.
Those are my reasons, and I make orders accordingly.
I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Bertone. Associate:
Dated: 27 February 2025
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